Police v Macdonald - [2012] NZHC 2388

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2011-054-002466 [2012] NZHC 2388

NEW ZEALAND POLICE

v

EWEN KERRY MACDONALD

Hearing: 14 September 2012

Counsel: P L Murray for Crown
G King and P S Coles for Accused

Sentence: 14 September 2012

SENTENCING OF SIMON FRANCE J

[1] Mr Macdonald you appear for sentencing on six charges. I will address each in turn, in chronological order:

(a) The first charge is theft. In December 2006 you and a co-offender, Mr Callum Boe, set out at night to poach trophy stags. The animals were kept in a paddock next to the house of the owners. The sole motivation was the challenge of seeing whether you could successfully kill and remove them. You and your companion shot and killed two stags. You then removed them and buried them back on your farm in holes that you had dug earlier in the day. The proximity of the paddock to the family home understandably left the owners with fears for their safety. It was necessary to install security
equipment, and their young daughters were affected for some time.

NEW ZEALAND POLICE V EWEN KERRY MACDONALD HC PMN CRI 2011-054-002466 [14 September
2012]

(b)The second charge is intentional damage, namely the releasing and therefore destruction of 16,000 litres of milk from a vat. The value of the milk was $5,000. The reason for this offending requires explanation. You and Mr Boe were long-time and proficient night-time poachers. A favourite venue was the property of Mr Graeme Sexton. Eventually you were caught. Mr Sexton agreed to a meeting at which you and Mr Boe admitted your offending and agreed not to do it again. It seemed matters were at end but you came to believe that, notwithstanding the agreement, others had been advised of your offending. You decided on revenge. Your targets were Mr Sexton, and Mr Barber, a neighbour who had played a role in you initially being caught.

(c) The releasing of the milk was the first act of revenge.

(d)The second, which leads to the next charge of wilful damage, was directed at Mr Barber. You intended to do the same thing, but unfortunately he had no milk stored that evening. Unfortunately may seem an odd word to use, but it is appropriate because rather than being deterred, you decided upon a much more callous and brutal revenge. The Barbers had 19 calves held in a nearby shed and you and Mr Boe killed all of them. One was still alive but dying when the scene was discovered the next morning.

(e) Third, seven months later, you and Mr Boe returned to the Sexton property and burned to the ground a 110 year old whare which had been a treasured possession of the family, full, as one would expect, of family memories and experiences. This act is the first charge of arson.

[2] I have received victim impact statements from Mr Sexton and Mr Barber. Each expresses dismay at what occurred.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Macdonald

Details

AGLC: Police v Macdonald [2012] NZHC 2388
Case: [2012] NZHC 2388
Decision Date: 14 September 2012

CaseChat Overview and Summary

In the case of New Zealand Police v Ewan Kerry Macdonald, the defendant was sentenced for six charges including theft, intentional damage, and arson. The court outlined the offences, which involved poaching, revenge attacks, and malicious damage to property. The legal issues focused on the appropriate starting point for the sentence and the appropriate adjustments for credit and totality. The court considered the nature and seriousness of the offences, the defendant's lack of remorse, and the impact on the victims. The reasoning led the court to set a starting point of two years, three months for the first group of offences and four years, three months for the second group of offences, before applying credit for the guilty plea and making a totality adjustment. The final sentence imposed was five years' imprisonment, with certain sentences being cumulative. This reflects both the damage caused and the reality that the defendant has no capacity to pay reparation.

Orders